After the Great Recession: Law and Economics\u27 Topics of Invention and Arrangement and Tropes of Style

AFTER THE GREAT RECESSION: LAW AND ECONOMICS’ TOPICS OF INVENTION AND ARRANGEMENT AND TROPES OF STYLE by Michael D. Murray Abstract The Great Recession of 2008 and onward has drawn attention to the American economic and financial system, and has cast a critical spotlight on the theories, policies, and assumptions of the modern, neoclassical school of law and economics—often labeled the Chicago School —because this school of legal economic thought has had great influence on the American economy and financial system. The Chicago School\u27s positions on deregulation and the limitation or elimination of oversight and government restraints on stock markets, derivative markets, and other financial practices are the result of decades of neoclassical economic assumptions regarding the efficiency of unregulated markets, the near-religious-like devotion to a hyper-simplified conception of rationality and self-interest with regard to the persons and institutions participating in the financial system, and a conception of laws and government policies as incentives and costs in a manner that excludes the actual conditions and complications of reality. This Article joins the critical conversation on the Great Recession and the role of law and economics in this crisis by examining neoclassical and contemporary law and economics from the perspective of legal rhetoric. Law and economics has developed into a school of contemporary legal rhetoric that provides topics of invention and arrangement and tropes of style to test and improve general legal discourse in areas beyond the economic analysis of law. The rhetorical canons of law and economics—mathematical and scientific methods of analysis and demonstration; the characterization of legal phenomena as incentives and costs; the rhetorical economic concept of efficiency; and rational choice theory as corrected by modern behavioral social sciences, cognitive studies, and brain science—make law and economics a persuasive method of legal analysis and a powerful school of contemporary legal rhetoric, if used in the right hands. My Article is the first to examine the prescriptive implications of the rhetoric of law and economics for general legal discourse as opposed to examining the benefits and limitations of the economic analysis of law itself. This Article advances the conversation in two areas: first, as to the study and understanding of the persuasiveness of law and economics, particularly because that persuasiveness has played a role in influencing American economic and financial policy leading up to the Great Recession; and second, as to the study and understanding of the use of economic topics of invention and arrangement and tropes of style in general legal discourse when evaluated in comparison to the other schools of classical and contemporary legal rhetoric. I examine each of the rhetorical canons of law and economics and explain how each can be used to create meaning, inspire imagination, and improve the persuasiveness of legal discourse in every area of law. My conclusion is that the rhetorical canons of law and economics can be used to create meaning and inspire imagination in legal discourse beyond the economic analysis of law, but the canons are tools that only are as good as the user, and can be corrupted in ways that helped to bring about the current economic crisis

Is there more than one thermal source?

BRAHMS has the ability to study relativistic heavy ion collisions over a wide range of pT and rapidity. This allows us to test whether thermal models can be generalized to describe the rapidity dependence of particle ratios. This appears to work with the baryo-chemical potential changing more rapidly than the temperature. Using fits to BRAHMS data for the 5% most central Au+Au collisions we are able to describe Xi and Omega ratios from other experiments. This paper is dedicated to Julia Thompson who worked to bring South African teachers into physics.Comment: 5 pages, 4 figures, proceedings for SQM04 conference, Cape Town South Afric

What Are Kinship Terminologies, and Why Do We Care? A Computational Approach to Analyzing Symbolic Domains

Kinship is a fundamental feature and basis of human societies. We describe a set of computational tools and services, the Kinship Algebra Modeler, and the logic that underlies these. These were developed to improve how we understand both the fundamental facts of kinship, and how people use kinship as a resource in their lives. Mathematical formalism applied to cultural concepts is more than an exercise in model building, as it provides a way to represent and explore logical consistency and implications. The logic underlying kinship is explored here through the kin term computations made by users of a terminology when computing the kinship relation one person has to another by referring to a third person for whom each has a kin term relationship. Kinship Algebra Modeler provides a set of tools, services and an architecture to explore kinship terminologies and their properties in an accessible manner

Residues of Mirex and Photomirex in Eggs and Fillets of Lake Ontario Coho and Chinook Salmon

Coho (Oncorhynchus kisutch) and chinook (O.tshawytscha) salmon collected from Lake Ontario during the fall of 1986 were analyzed by gas chromatography for mirex and photomirex residues. Mirex in fillet tissue (n=24) ranged from 0.015 to 0.41 mg/kg (mean= 0.19 mg/kg). Photomirex concentrations ranged from nondetectable (in two samples) to 0.18 mg/kg (mean= 0.080 mg/kg). Mirex in egg samples (n = 5) ranged from nondetectable to 0.21 mg/kg (mean = 0.10 mg/kg), while photomirex ranged from nondetectable to 0.38 mg/kg (mean= 0.11 mg/kg). Analysis of variance revealed no statistical difference (P \u3e 0.05) between the value of 0.19 mg/kg reported here and either the 0.22 mg/kg reported by Insalaco et al. (1982) for salmon collected in 1977, or the mean residue of 0.18 mg/kg observed by Makarewicz (1985 unpublished data) for salmon collected in 1982. However, analysis of covariance revealed a decrease of 26% (P \u3c 0.01) in mirex levels in 1982 and 1986 relative to 1977 levels after removal of the confounding variable weight. The data suggest the need for more rigorous statistical analyses than are typically applied in studies attempting to elucidate trends in mirex contamination in Lake Ontario

Diagrammatics and the Proactive Visualization of Legal Information

This article performs an analysis of one mode of visual legal communication: diagrammatics and the visualization of legal data and other information in legal instruments and communications. The Proactive Law movement and the Legal Design movement each seek to transform legal instruments and documents to improve access to and comprehension of the communication of law to all persons. “All persons” includes both law-trained and non-law-trained persons and extends from the literate and educated all the way to disadvantaged, illiterate, and less-thanfully literate persons. The overall goal of the Proactive Law movement and a primary goal of Legal Design is to improve the understanding of legal rights, relationships, and obligations expressed in legal products, instruments, services, processes, and systems through illustration, simplification, engagement, and inclusiveness in the text and visual components of these instruments and communications

Generative AI Art: Copyright Infringement and Fair Use

The discussion of AI copyright infringement or fair use often skips over all the required steps of the infringement analysis in order to focus on the most intriguing question, “Could a visual generative AI generate a work that potentially infringes a preexisting copyrighted work?” and then the discussion skips further ahead to, “Would the AI have a fair use defense, most likely under the transformative test?” These are relevant questions, but without considering the actual steps of the copyright infringement analysis, the discussion is misleading or even irrelevant. This neglecting of topics and stages of the infringement analysis fails to direct our attention to a properly accused party or entity whose actions prompt the question. Making a sudden transition from a question of infringement in the creation of training datasets to the creation of foundation models that draw from the training data to the actual operation of the generative AI system to produce images makes a false equivalency regarding the processes themselves and the persons responsible for them. The questions ought to shift focus from the persons compiling the training dataset used to train the AI system and the designers and creators of the AI system itself to the end users of the AI system who conceive of and cause the creation of images. The analysis of infringement or fair use in the generative AI context has suffered from widespread misunderstanding concerning the generative AI processes and the control and authorship of the end-user. Claimants, commentators, and regulators have made incorrect assumptions and inaccurate simplifications concerning the process, which I refer to as the Magic File Drawer theory, the Magic Copy Machine theory, and the Magic Box Artist theory. These theories, if they were true, would be much easier to envision and understand than the actual science and technology that goes into the creation and operation of a contemporary visual generative AI system. Throughout this Article, I will attempt to clarify and correct the understanding of the science and technology of the generative AI processes and explain the different roles of the training dataset designers, the generative AI system designers, and the end-users in the rendering of visual works by a generative AI system. Part II will discuss the requirements of a claim of copyright infringement including each step from the copyrightability of the claimant’s work, the doctrines that limit copyrightability, the requirement of an act of copying, and the infringement elements. Part III will summarize the copyright fair use test paying particular attention to the purpose and character of the use analysis, 17 U.S.C. § 107(1), and the current interpretation of the “transformative” test after Andy Warhol Foundation v. Goldsmith, particularly in circumstances relating to technology and the use of copyrighted or copyrightable data sources. Part IV will analyze potential infringement or fair use by the creators of generative AI training datasets. Part V will analyze potential infringement or fair use by the creators of visual generative AI systems. Part VI will analyze potential infringement or fair use by the end-users of visual generative AI systems. For all their complexity, visual generative AI systems are tools that depend on an end-user who conceives of and designs the image and provides the system with a prompt to set the generative process in motion. The end-users are responsible for crafting the prompt or series of prompts used, for evaluating the outputs of the generative AI, for adjusting and editing the iterations of images offered by the AI system, and ultimately for selecting and adopting one of the images generated by the AI as the final image. The end-users then make further decisions about the actual use and its function and purpose for the images the end-users selected and adopted from the outputs of the AI. While working with the AI tool to try to produce a certain image, an end-user might steer the system to produce a work that could, under an infringement analysis, be regarded as potentially infringing, which would lead us again to the fair use analysis based on the end-user’s use of the image

Jurisdiction Under the Foreign Sovereign Immunities Act for Nazi War Crimes of Plunder and Expropriation

This article addresses each of these issues regarding the application of jurisdiction under the FSIA to World War II and other pre-1952 war crimes, including claims involving expropriation and plunder of personal property, and concludes that none of these issues prevents the exercise of jurisdiction under the FSIA for resolution of these claims in United States courts. Part II discusses the history of the doctrine of sovereign immunity in the United States prior to the enactment of the FSIA, with particular reference to the development of the restrictive theory of sovereign immunity. Part III discusses the structure and purpose of the Foreign Sovereign Immunities Act and the expropriation exception. Part IV discusses whether the FSIA is a jurisdictional statute. Part V discusses whether the FSIA is a procedural statute that applies to pre-effective date and pre-1952 conduct without affecting the antecedent rights of the parties. Part VI considers whether the retroactive application of the statute was clearly indicated and intended by Congress, if in fact the application of the FSIA to pre-enactment conduct or to pre-1952 conduct does affect substantive rights of state parties to sovereign immunity under U.S. law. Part VII discusses whether nations implicated in World War II-era war crimes should have expected immunity from prosecution in foreign courts, thus further refuting the claim that retroactive application of the FSIA actually violates substantive rights under customary international law

Tools Do Not Create: Human Authorship in the Use of Generative Artificial Intelligence

Artistic tools, from brushes to complex algorithms, don’t create art; human artists do. The advent of generative AI tools like Midjourney, DALL-E, and Stable Diffusion has blurred this understanding, causing observers to believe these tools are the authors of the artworks they produce, even so far as to imagine that the artworks are “created” by the AI in the copyright sense of the word. Not so. The U.S. Copyright Office recently issued guidance on the copyrightability of works produced using generative AI tools. The Office has accepted the narrative that AI tools perform the steps of authorship, conceiving of the image and rendering it into existence, and denying copyright because randomly or automatically generated works lack human authorship. This interpretation of generative AI is fundamentally flawed. Contemporary visual generative AI systems can do extraordinary things, but as of yet not autonomously and not automatically. Generative AI systems are tools—highly complex, deeply technological tools to be sure, but tools none the less. And these tools require a human author or artist—the end-user of the generative AI system—to provide the inspiration and design and often the instructions and directions on how to produce the image. It is a fallacy to view AI systems as the authors of the works they generate. The process of how an end-user of a contemporary generative AI tool creates art and how a human artist goes about the same task are very similar. An artist working with a generative AI tool is no different from an artist working with a digital or analog camera or with Photoshop or another image editing and image rendering tool

A New Methodology for the Analysis of Visuals in Legal Works

The goal of this Article is to introduce a comprehensive methodology for the analysis of visuals used for communication in legal works, by which I mean transactional and litigation documents, legal instruments, primary and secondary sources of law, and legal informational materials. To date, the scholarship on visuals in legal communications has been heavily descriptive, with some forays into the ethical and practical considerations of the use of “visualized” legal works. No one has yet devised a comprehensive analytical methodology that draws upon the disciplines of visual literacy, visual cultural studies, visual rhetoric, and mise en scène analysis to evaluate the strengths and weaknesses of actual examples of highly visual legal documents and critique their efficacy and propriety in a variety of legal settings. This Article will fill that gap in the literature. The new methodology evaluates the following aspects of visual legal works: • Immediate Visual Context - Analysis of Meaning -Taxonomy of Purpose and Function • Immediate Verbal Context • Visual Cultural Context • Mise en Scène and the Rhetorical Topic of Arrangement • Visual Rhetoric and the Ethical and Professional Propriety of the Work. Lawyers, judges, and law students typically do not receive training in visual literacy regarding the reading and interpretation of visual images, and much less so in the design principles required to create the most effective visuals for legal communications and legal instruments, such as contracts. This condition persists in spite of the fact that visual images can communicate across language and cultural barriers, taking advantage of the enormous speed and power of visual communication. In equal measure, knowledge and understanding of these principles will enable lawyers to design and use effective visuals, and to challenge or respond to the visual legal communications proffered by their opponents in litigation or negotiation, or their counterparts in a transaction. My intent in this Article and the methodology it presents is to examine visual elements as visuals, not as a translation or alternative form of verbal communication. The approach of trying to translate visual works into verbal arguments or verbal elements of legal reasoning limits the scope and the effectiveness of the visual works, because communication through visuals employs a separate visual language, and not in a literal or verbal sense. The methodology proposed in this Article is a set of tools that can help verbally oriented law-trained writers to become better readers, evaluators, and creators of visual communications in the law

Frederick Beecher Perkins: Library pioneer and curmudgeon.

In the following thesis, I will argue that Frederick Beecher Perkins is an overlooked figure in library history who deserves to be listed among the great library pioneers. Perkins was involved with many of the people, organizations, and major debates that shaped the field of librarianship in the late 1800s. He was associated with such figures as Melvil Dewey and Justin Winsor. He was involved in the critical issues of the day such as best reading, cataloging and classifying books, and administering libraries. He also played a role in important organizations and libraries such as the American Library Association, the Boston Public Library, and the San Francisco Public Library. Perkins was a major voice in the important debates taking place in library science and produced a large body of work that established a strong foundation upon which the library profession grew